Kiriiro Muketha Kaanja v Kaibiru Kirumba [2014] KEHC 8612 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA  AT MERU

HIGH COURT

CIVIL APPEAL NO. 137 OF 2013

KIRIIRO MUKETHA KAANJA

VERSUS

KAIBIRU KIRUMBA

DIRECTIONS ON JURISDICTION REGARDING APPEALS FROM PROVINCIAL LAND DISPUTES APPEALS COMMITTEES

1. This matter came up for directions from the Registry on 7. 10. 2014.  It concerns files           coming from the Eastern Province Land Disputes Appeals Committee  in cases           where appeals had not been completed.

Section 8 of the Land Disputes Tribunals Act deals with Appeals to the Appeals Committee and to the High Court.

Section 8(8) states:

“The decision of the Appeals Committee shall be final on any issue of fact  and   no appeal shall lie therefrom to any court.”

4.   Section 8(9) States:

“Either party to the appeal may appeal from the decision of the Appeals Committee to the High Court on a point of Law within sixty days from the date of the decision complained:

Provided that no appeal shall be admitted to hearing by the High  Court unless a Judge of that Court has certified that an issue of law   (other than customary Law) is involved.”

5. Section 8 (10) states:

“A question of Customary Law shall for all purposes under this Act be deemed to be a question of fact”

6.     It is clear that this court can only take appeals from the defunct Provincial  Appeals Committees on issues of law alone.  Where the Provincial Appeals Committees had not concluded Appeals from District Tribunals, such  matters involve both issues of fact and law.

7.       Jurisdiction as stated in the case of “The MV SS Lilian” [1989] KLR 1 is  everything.  I quote the Hon. Justice Nyarangi, J., as opining.  “Where a court has no jurisdiction, there would be no basis for a continuation of      proceedings pending other evidence.  A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without         jurisdiction.”

8.       The Supreme Court, in application No. 2 of 2011, Samuel Kamau Macharia & Another Vs Kenya Commercial Bank, at paragraph 68 eruditely and   laconically stated:

“A Court's Jurisdiction follows from either the Constitution or Legislation or both.  Thus, a Court of Law can only exercise Jurisdiction conferred by the Constitution or other written law.  It cannot arrogate to itself Jurisdiction exceeding that which is conferred upon it by law.”

9        The ELC hears appeals from concluded appeals of Provincial Appeals                        Committees on issues of  law only.  Unconcluded appeals spawn both issues of fact and law.  Furthermore, section 8 (9) of the defunct Land Disputes Tribunal Act  makes it clear that appeals from Provincial Appeals Committees are against decisions of the Appeals Committee.  Obviously,  this provision does not countenance hearing matters in which decisions  have not been made.

10.    In the circumstances, I find that the ELC has no jurisdiction to hear appeals   which had not been concluded by the defunct Provincial Appeals     Committees.  Such cases should not be referred to this court.  I  reiterate that this court cannot arrogate unto itself jurisdiction which has not been anchored upon constitutional or  statutory   provisions.

11.    This court has jurisdiction to hear appeals against decisions in matters which had been concluded by the defunct Provincial Appeals Committees before  they were abolished.

12.   These directions should apply to all similar cases.  Let the registry and all  other concerned parties be guided appropriately.

It is so ordered.

Dated at Meru this 7th day of October, 2014 in the presence of:

Daniel/Onderi

P. M. NJOROGE

JUDGE